Speaks v. Commissioner of Social Security

Chrissy
Speaks brings this action pursuant to 42 U.S.C. §§
1383(c)(3) and 405(g) to review a final decision of the
Commissioner of Social Security ("Commissioner")
denying her claim for supplemental social security income
("SSI") under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-83(f). She suffers from diabetes,
asthma, pancreatitis, bipolar disorder, anxiety disorder,
personality disorder, and alcoholism. On October 28, 2014,
Administrative Law Judge Dina Lowey concluded that those
conditions in combination are disabling. But because the ALJ
found Speaks' substance abuse to be a contributing
material factor to her disability, benefits were
denied.[1]

I find
no fault with the ALJ's thorough analysis of the record
overall. The ALJ's ultimate decision to deny benefits,
however, essentially hinged on a single, inadequately
explained difference between two RFC determinations, which
requires further development. The difference was attributed
to substance abuse, i.e., alcoholism, and the ALJ attempted
to isolate the extent to which Speaks's impairments were
attributable to alcoholism, a difficult task.[2] (R. 17)

In the
course of doing so, the ALJ performed two RFC analyses.

For the
first RFC, the ALJ considered all of Speaks's
impairments. Given Speaks's medical source records and
two consultative examiner's reports, the ALJ concluded
that although she had the capacity to perform some light
work, Speaks would be off task for 20% of the workday. (R.
15-16)

For the
second RFC, the ALJ considered all of Speaks' impairments
except her substance abuse disorder. But for her
drinking, the ALJ found, Speaks would have had the capacity
to perform the same type of light work as defined in the
first RFC, but she would not be off task at all during
the workday. In other words, the ALJ found that
all of Speaks' inability to stay on task was
attributable to alcoholism, and none attributable to
her other impairments. Because Speaks has have the capacity
to work a significant number of jobs that exist in the
national economy, but for the limitations imposed by her
substance abuse disorder, the ALJ denied benefits. (R. 19-20)

That
conclusion, however, lacks the analysis and reasoning
necessary for this Court to exercise its review function.
Specifically, the decision fails to explain why Speaks'
inability to stay on-task is attributable only to substance
abuse and not at all to her mental impairments. The ALJ, to
be sure, gave reasons for why she thought that the subjective
symptoms of those mental disorders were
exaggerated.[3] That, however, is not really the problem.
What is missing any evidence-based explanation or description
of the correspondence between Speaks's alcohol abuse and
her inability to stay on task.

Such a
one-to-one correspondence, while not wholly implausible,
cannot simply be assumed. In the first RFC analysis, the ALJ
states that the two consultative examiners reported "a
significant impairment in maintaining concentration,
persistence or pace while abusing alcohol." (R. 15).
That, however, is not precisely what the examiners said. The
first examiner actually offered a more nuanced opinion:
Although Speaks appeared to have difficulty focusing and
recalling objects, the examiner was uncertain about the
interplay between Speaks' mental illness and substance
abuse. (R. 960) ("It is unclear . . . to what extent or
in what way, if any, that Chrissy's alcohol abuse is
related to the psychologically based symptoms that she may
experience. In any case, it appears the current limitations
in social and occupational functioning that she may
experience are related to her alcohol dependence, psychiatric
illness, [and] overall disturbance in personality . . .
.")) The second report does not link Speaks's
concentration difficulties to alcoholism; Speaks, of course,
did not help matters by reporting to the examiner that she
"occasionally drinks a beer." (R. 975-78)

The
ALJ's view of the case may have caused her to fail to
give due weight to a salient piece of evidence. Speaks,
recall, was found likely to be off-task 20% of the time. The
vocational expert opined, however, that Speaks could not
perform any job existing in the economy if she were off task
for even as much as 10% of the time. (R. 74) The record
contains evidence that Speaks's mental impairments are
serious and real. (R. 957-61, 975-78) (discussing reports of
manic episodes, suicide attempts, suicidal ideations,
self-mutilation, and auditory and visual hallucinations). As
the ALJ found in step three, such impairments imposed mild to
(at least) moderate limitations on Speaks's ability to
perform day-to-day activities, function socially, and
concentrate. (R. 13-14, 17-19)[4] Thus it is quite plausible that
Speaks's mental impairments, standing alone, could cause
her to be off-task as much as 10% of the time. At the very
least, these circumstances are sufficient to require a
reasoned, evidence-based explanation for the conclusion that
the entire 20% of off-task time is attributable to alcoholism
alone.

For
these reasons, the matter will be REMANDED to the ALJ for
further proceedings. The record may be developed further, if
appropriate. If disability would be present even absent the
substance abuse, the ALJ may so find. If, on the other hand,
substantial evidence indicates that Speaks's substance
abuse rises to the level of a contributing material factor to
Speaks' disability, the ALJ shall provide reasons for
that finding sufficient for this Court to exercise its
function of review.

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